California OAH special education order · August 11, 2017

Order Denying Motion for Stay Put

OAH Case No. 2017080393 · ALJ Robert G. Martin

OAH denied Student's stay put motion because District swore it will keep implementing Student's residential placement under the April 2017 IEP until Parents consent otherwise or a court orders a change, so no dispute existed.

Denied Stay put

Summary

Student asked OAH to order Petaluma City School District to keep Student in a residential treatment center under the April 25, 2017 amended IEP while the case is pending. Student was worried because the IEP listed an end date tied to the October 2017 annual IEP. District opposed and filed a sworn declaration from its Director of Special Services. The declaration said the end date was only the duration statement the law requires, and that District would keep implementing the placement until Parents withdraw consent, consent to a new IEP, or a court orders otherwise. OAH found no present dispute over stay put and denied the motion.

Why it matters

An end date written into an IEP does not by itself mean the placement is temporary. A sworn district commitment to keep the placement can settle stay put concerns, and parents may later point to that pledge if the district tries to change the placement.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • 34 C.F.R. § 300.518(a)
  • Ed. Code, § 56505, subd. (d)
  • Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
  • Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1
  • Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558

People named in the order

  • Molly Nagel, District Director of Special Services (declarant)

Topics

stay put residential placement temporary placement sworn declaration iep duration

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2017080393 v. ORDER DENYING MOTION FOR

STAY PUT

PETALUMA CITY SCHOOL DISTRICT.

On July 31, 2017, Student filed a due process hearing request and a motion for stay put. Student’s motion sought an order directing Petaluma City School District to maintain Student’s placement in a residential treatment center, pursuant to Student’s April 25, 2017 amended individualized education program, during the pendency of Student’s due process hearing request. Student expressed concern that the placement and services in Student’s amended IEP were offered with an end date as of Student’s October 2017 annual IEP.

On August 3, 2017, District filed an opposition to Student’s motion on grounds that District is implementing Student’s April 25, 2017 IEP and has not proposed any changes in Student’s placement. District’s Director of Special Services Molly Nagel submitted a sworn declaration on District’s behalf that District offered Student placement and services of specified duration ending as of Student’s annual IEP because the law requires such a statement of duration. Ms. Nagel stated Student’s IEP team will review Student’s placement and services at his annual IEP in October 2017, and District will continue to implement the placement and services in Student’s April 25, 2017 IEP until Parents withdraw consent to that IEP or consent to a different IEP, or until a court order requires the District to do otherwise.

APPLICABLE LAW AND DISCUSSION

Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006)1; Ed. Code, § 56505 subd. (d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student’s individualized education program, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

However, if a student’s placement in a program was intended only to be a temporary placement, such placement does not provide the basis for a student’s “stay put” placement.

(Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1, 7-8; Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.)

Here, District has resolved any confusion over whether its April 25, 2017 IEP offer of residential placement was intended to be temporary, or whether a dispute exists as to Student’s placement, by submitting a sworn declaration pledging that District will continue to implement the placement and services in Student’s April 25, 2017 IEP until Parents withdraw consent to that IEP or consent to a different IEP, or until a court order requires the District to do otherwise. Because there is no present dispute as to Student’s stay put placement and services, Student’s motion for stay put is denied.

IT IS SO ORDERED.

DATE: August 11, 2017

ROBERT G. MARTIN

Administrative Law Judge Office of Administrative Hearings